Governments should use FOIA demand to drive open data disclosure

Miriam Nisbet, former director of the Office of Government Information Services at the National Archives, testifies before the U.S. Senate Judiciary Committee in July 2016. (Photo credit: Alex Howard/Twitter)

Now that we have achieved Freedom of Information Act (FOIA) reforms in the United States, it’s critical that we use what we’ve learned over the past decade of releasing data online to improve not only the process but public knowledge itself. Our Congress has once again affirmed that accessing information is a right, not a privilege, and that the right is enjoyed by all citizens — not just media or industry players with advantage or influence.

In that context, governments should connect the demand expressed in freedom of information requests to the proactive disclosure of open data. This statement might look like common sense, but it’s still not happening in far too many cities, states and federal governments. There should be an explicit connection between what people and industries are asking for and what government are releasing – or not releasing – that’s still not being made at the highest levels of federal government and the lowest levels of municipal and county government.

Proactively releasing open data that is frequently requested under access to information law is a no-brainer. We’re glad to see that the White House agrees: In June, President Obama directed “the newly established Chief FOIA Officers Council to consider the lessons learned from the DOJ pilot program and work to develop a Federal Government policy establishing a ‘release to one is a release to all‘ presumptive standard for Federal agencies when releasing records under FOIA.”

We understand the concerns that investigative journalists have about a “release to one, release to all policy“; however, when the public gets public records is a matter of public interest. Journalists want government transparency and accountability, but not right away. The Project on Government Oversight supports a short waiting period. We think the question of delay or immediate release merits public debate and comment from not only those who use FOIA but the broader public that depends upon the stories built on the records to stay informed about what our governments are doing. We encourage everyone to contact the newly established Chief FOIA Officers Council, which was charged with examining “issues critical to this policy’s implementation, including assessing the impact on investigative journalism efforts, as well as how best to address technological and resource challenges,” and provide further guidance by Jan. 1, 2017.

FOIA wasn’t enacted to be a subsidy for commercial interests

Percentage of federal agency FOIA requests from commercial sources
Percentage of federal agency FOIA requests from commercial sources. (Graphic credit: Margaret B. Kwoka/Senate Judiciary Committee)

Putting the question of a public interest for journalists aside, the rationale for making FOIA work better for its intended purpose by proactively disclosing commercial requests online is clear and grounded in the evidence we expect to back any good public policy.

Tuesday’s testimony before the Senate Judiciary Committee by University of Denver law professor Margaret B. Kwoka highlighted a stunning fact: The majority or even the vast majority of public records requests made to the federal agencies come from commercial interests. Kwoka analyzed the FOIA requests made to the Securities and Exchange Commission, the Food and Drug Administration, the Environmental Protection Agency, the Defense Logistics Agency, the Federal Trade Commission and the National Institutes of Health.

This is neither the first time this insight has been reported on nor studied, but it’s one of the highest-profile discussions of the dynamic in recent history, leading substantive questioning between Sen. Patrick Leahy, D-Vt., and Kwoka about what should be done.

Her answers were straightforward: Move to affirmatively disclose entire categories of information that industry is using FOIA as a mechanism to pry loose from the federal government, and then package and resell. As Kwoke told FedScoop after the hearing, fixing FOIA requires both better disclosure policies and improved technology.

Notably, the data that these commercial interests are extracting and then reselling at considerable cost to the American taxpayer. Her research estimating 1—5 percent of the cost of production being recouped through billing. The Justice Department statistics show approximately $4 million in revenues come into the federal government, as compared to over $450 million in FOIA-related costs spent annually.

That such a situation endures in 2016 after seven years of the Obama administration’s focus upon opening data is reflective of how separate the discussions and communities around freedom of information and open data have continued to be over that time, despite the public interest of connecting the two.

Analyze FOIA logs to prioritize affirmative disclosure

The way forward here is to use the logs of inbound public records requests to assess which categories of records are being frequently requested and then to proactively structure and publish them. As local, state and federal agencies systematically track, structure and open this data around FOIA requests, it will be clear both externally and internally where demand lies.

At the federal level, this could significantly enhance the richness of the data published on Instead of just publishing PDFs onto agency FOIA reading rooms – which only 40 percent of federal agencies use — there should be an automated process whereby federal agencies also publish responsive records onto

At the state and local level, this data should “live” on an open data platform. New York City’s approach to open data on its open records website is a useful example of how a municipality can integrate freedom of information into proactive disclosure.

The answer to this is not to begin charging industry for data, but to publish it online. This is neither unprecedented nor impossible. The recent move by the IRS to publish nonprofit tax returns as open data is a good model for agencies to proceed, particularly with respect to redacting personally identifiable information. Federal agencies should apply the standard lens for exemptions that federal agencies always do prior to publishing government data and the newly enacted “presumption of openness.”

It’s the law

On that count, it’s worth highlighting that in the United States, our reformed FOIA law explicitly mandates that federal agencies move in this direction on their own.

The bill that President Obama signed into law now require “agency heads to establish procedures for: (1) identifying records of general interest or use to the public that are appropriate for public disclosure, and (2) posting such records in a publicly-accessible electronic format.” It states, “Each agency, in accordance with published rules, shall make available for public inspection in an electronic format … all records, regardless of form or format:

(i) that have been released to any person under paragraph (3); and

(ii)(I) that because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; or (II) that have been requested 3 or more times.

At the state and local level, we hope and expect that political leaders, chief information officers, data officers and public records officials will collaborate on connecting inbound FOIA requests to open data releases as well — and that city councils and legislatures will reform public records laws to ensure that commercial entities and the public alike can access frequently requested open data online.

3 reasons to connect FOIA to open data

Making the explicit connection between FOIA requests and government data releases serves several purposes.

The first is to serve the declared outcome of supporting entrepreneurs that many open data advocates have long held up as a rationale for releases, from President Obama on down. If industries are willing to buy data, it is a clear indication that that data has economic utility for them. That also means that their competitors and everyone else in the sectors they operate would also find the insights in that data valuable. Therefore, releasing it would put all players on an equal playing field, forcing those who seek to capture the value in it to instead add to it.

The second purpose serves an outcome that applies at every level of government: Proactively releasing open data of frequently requested categories of government information to the public will free up human capacity to process the more complicated requests filed by journalists. Given the long history of investigative journalists basing their data-driven, Pulitzer Prize-winning stories upon a backbone of public records requests, including those that highlight fraud, waste, abuse and other issues that lead to reforms, this should be a priority at every level of government.

The third purpose is to hold governments more accountable for releasing data that they do not wish to, whether it’s embarrassing or indicative of poor performance or criminality. Openwashing is a real and pervasive issue around the world and must be called out and prevented through both political and regulatory mechanisms. If we do not connect open data to access to information rights and the accountability their expression provides, we make it possible for governments to claim openness without actually embracing it.

The way forward is to use modern public records software to track inbound FOIA requests, log their origin and systematically publish frequently requested records online on an ongoing basis. We strongly encourage every government, everywhere, to do so proactively.